The Government’s mass surveillance programme to collect people's internet activity and phone records has been ruled unlawful by the Court of Appeal.

Judges said the Data Retention and Investigatory Powers Act (Dripa) 2014 breached EU law as it allowed the data to be harvested for reasons other than fighting serious crime.

It also enabled police and public bodies to authorise their own access, avoiding prior authorisation by a court or independent body.

Dripa has since been replaced by the Investigatory Powers Act 2016 – dubbed the “snooper’s charter” – which campaigners said would have to be changed in the wake of today’s ruling. Many of the powers that feature in Dripa and were criticised in the case were replicated and even expanded in the new legislation.

[...]

The two central findings from the Court of Appeal – that Dripa was being used to collect data for the wrong purposes, and without proper sign-off – still exist in the current legislation. That means that the existing legal framework for the UK to spy on its citizens is "effectively unlawful", Liberty claimed.

The law basicly implemented a Stasi regime in the UK, where data was collected en masse and could be trawled through by pretty much any government agency on their own say-so. The ruling upholds basic norms around privacy and surveillance: that intrusive searches require particularised suspicion and independent authorisation (norms that were invented in the UK and go back to the Magna Carta). The fact that the UK government is now squealing about this shows us how far they have strayed from democratic values and onto the path of tyranny.

The scary thing is that Theresa May wants the UK to withdraw from the ECHR, precisely so that tyrannical laws like this cannot be overturned. Brexit and the push to "take back control" (from courts the UK helped establish and shape, applying UK democratic norms) is a real threat to human rights and privacy in the UK.

Tuesday, January 30, 2018

The Law Commission and Ministry of Justice have released their joint Review of the Search & Surveillance Act 2012. This was meant to be a post-legislative review to determine if the law was working properly, and overall it concludes that it is. At the same time, there's some significant (and useful) tweaks:

The big one: requiring judicial authorisation for police covert operations. The threshold for this - reasonable grounds to suspect an offence punishable by imprisonment - is too low (to point out the obvious, "disorderly behaviour" is punishable by imprisonment, so this would allow police infiltration of protest groups). But the principle of requiring judicial authorisation for this sort of activity is good, and suggests that the police may have learned something from their disastrous Red Devils case, and from the horrors of the UK.

Changes to the production order regime, including requirements to notify targets and a suggestion that there should be reporting. A lot of this material is redacted due to suppression orders around an ongoing court case, but it looks like things are moving in the right direction.

A requirement that a search warrant be obtained in order to search a digital device such as a cellphone.

Replacement of the term "surveillance device" with "surveillance technology", so that the law covers surveillance via software (e.g. using people's webcams to spy on them). This is a good, technology neutral change, and its one which needs to be applied to the Intelligence and Security Act regime as well.

A policy statement regime, similar to that used in the Intelligence and security Act, requiring enforcement agencies to state publicly how and when they will use search and surveillance powers.

There's a few nasty things - allowing Immigration to use surveillance devices and trespass visual surveillance, which seems unjustified by the nature of crimes they deal with; letting undercover police use fraudulent identity documents like spies; increasing the penalties for refusing to disclose your passwords to police - but its generally positive. It will be interesting to see if parliament follows the report's advice, or whether it will be watered down at the behest of the police.

Horizons Regional Council wants to change nutrient runoff allowed under its One Plan to make it easier for some Manawatū-Whanganui farmers to get a resource consent.

The regional council is seeking to reassess nitrogen runoff limits for dairy farms as well as horticultural units.

[...]

"If farms can meet the current leaching targets they get a consent. This side of the ranges it is easier but in Tararua it is harder," said Peet.

He said advice sought by the regional council suggested farmers would lose at least $30,000 if they were to meet all of the runoff requirements for One Plan.

"If we insisted all people had to meet the table in the One plan, they would face a significant loss."

Tough shit. These fuckers are poisoning our rivers. Being forced to clean up their act or go out of business is exactly what should be happening. Instead of weakening the plan and penalising farmers who have cleaned up their act, Horizons should be enforcing it, and prosecuting those who refuse to comply. Which is what the court told them to do, and their fucking job.

It would be nice to have a regional council which actually enforced the law, rather than just making excuses for polluters.

Monday, January 29, 2018

People Against Prisons Aotearoa has published an in-depth report on the use of solitary confinement in New Zealand prisons, and are calling for it to be abolished. Its an important report, backed by evidence from the Office of the Ombudsman and the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and worth reading. The short version:

Corrections uses solitary confinement (defined as socially and physically isolating someone for 22-24 hours a day) for various purposes. They use it explicitly as a punishment, and to maintain prison order. They use it to "protect" prisoners who are in danger of being harmed by other prisoners, by putting them under the same regime as the ones they are punishing. Most weirdly, they use it to "protect" prisoners considered at risk of mental illness or self-harm. Sometimes, they effectively use it by accident, simply because they're understaffed and can't be arsed letting prisoners out of their cells. But prolonged solitary confinement, for more than 10 days or so, has extremely unpleasant side effects and basicly causes mental illness. When imposed on people with pre-existing mental illness, it makes their condition much worse. Its use is strongly correlated with increased risk of suicide.

The infliction of severe mental pain or suffering for the purposes of punishment or for reasons of discrimination (e.g. against the mentally ill for no therapeutic purpose) has a meaning: its called torture. And its a crime under both New Zealand and international law. New Zealand has supposedly committed not to torture people, both by international agreement and in domestic law. We need the government to uphold that commitment and stop torturing people in prisons. The Minister of Corrections has a choice: they can end this crime, or be a party to it. Their choice.

Friday, January 26, 2018

How are human rights enforced in New Zealand? For a lot of them, such as the right not be discriminated against, or the right to privacy, it is done via the Human Rights Review Tribunal (HRRT). Except the HRRT is so underfunded, it can no longer do its job:

A tribunal set up to hear breaches of human rights has become so overworked and underfunded it can't even schedule a phone conference to plan a hearing, according to an email sent by a staff member.

The amount of work handled by the Human Rights Review Tribunal has doubled over two years even though funding and staffing levels remain the same.

It has meant huge delays for those bringing complaints of discrimination, harassment and privacy breaches.

And for those who have brought cases, the Herald has learned of two that have had a three-year delay in having decisions delivered.

This is a clear case of justice delayed is justice denied. It basicly makes the complaints process a waste of time, and the law meaningless. And all because the penny-pinching previous government refused to fund the HRRT to deal with its full workload.

We've seen this before, with the Ombudsman and OIA complaints. And the answer then was to throw millions of dollars at them to clear the backlog and allow them to resolve complaints quickly and efficiently again. If we want our human rights law to be effective, then we are going to have to do the same with the HRRT. Another example of how National's short-term "savings" end up as long-term costs.

An article in The Spinoff yesterday accused the New Zealand Taxpayer's Union - a National Party front group featured in Dirty Politics - of wasting public money by using the OIA and LGOIMA. According to the article, the NZTU was responsible for 5% of all LGOIMA requests to the Auckland Council, at an estimated cost (repeated uncritically by The Spinoff) of $39,100. Which is apparently a Bad Thing. Why, the Auckland Council could buy a whole centimetre of road for the cost of the time wasted by this organisation!

Sure. And how much could they buy if they stopped answering OIA requests from Greater Auckland? Or The Spinoff. More generally, what could the government afford if it refused to answer OIA requests from Greenpeace, the media, or the opposition?

Because that's what The Spinoff is inviting them to do. And by doing so, they buy fully into the bureaucratic narrative that transparency and the ability of citizens to hold government to account is "waste", rather than a core function.

I reject that narrative. Transparency is a right. Public servants work for us, are accountable to us, and must be transparent to us. And that applies regardless of who is asking the questions - whether its the good guys at Generation Zero, or the hacks at the Taxpayer's Onion. Trying to cost-shame your political opponents over transparency falls into the same category as trying to cost-shame people over the cost of elections and referenda: its anti-democratic idiocy. And as a media organisation, The Spinoff should be ashamed they published it.

The Government will ban 90 day trial periods for any business with more than 19 employees as part of the overhaul.

The controversial fire-at-will scheme, introduced by the last government, gave employers the right to dismiss workers without cause during a 90-day trial period.

Small businesses - those with 19 employees or fewer - will still be allowed to use trials.

According to the Ministry of Business, Innovation and Employment, the latest data from Statistics New Zealand suggests that 97 per cent (487,602) of all enterprises are counted as small businesses, but these employ only 29 per cent (599,880) of all employees in New Zealand.

So basicly the 30% of the workforce who are most vulnerable, because their bosses are the stupidest and crappest and lack institutional expertise, will be left at the mercy of their employers. Yay Labour! Let's do this! Errr...

Labour had campaigned on allowing trial-period workers to challenge a dismissal, which would then be decided by a referee service within three weeks, with a $5000 payout cap and no right of appeal.

Workplace Relations Minister Iain Lees-Galloway said that would no longer be the case.

"What we will announce will be quite different to that. That's a result of our negotiations with NZ First."

So there you have it: worker's rights, which Labour wanted to ditch, were protected by Winston. Something is seriously wrong with the Labour Party when that happens. But that's what happens when you have a party which fundamentally stands for nothing.

Cape Town residents may lose piped water to their homes within two months if they do not act to counter the effects of the worst drought to hit South Africa’s second city in almost a century.

Local authorities have warned its 4 million inhabitants that if they do not reduce consumption by “day zero” – 12 April – they will have to queue at 200 standpipes for daily rations of 25 litres (6.6 US gallons).

And that basicly means the end of modern civilisation in Cape Town - because running a modern city on 25l of water per day per person just isn't workable. Quite apart from the personal discomfort, the economic damage, and the logistical issues, modern public health depends on everyone having easy access to clean water. Take that away, and its a recipe for C19th epidemics again. As for the solution, if they don't get a pile of rain soon, basicly people will have to leave. Its like something out of The Water Knife...

As Geoffrey Palmer said, New Zealand is "an irreducibly pluvial nation", so our cities aren't in this sort of danger anytime soon. But its a different story over the ditch. Syndey has had serious water problems in the last decade, and while they're in the past, climate change means a serious risk that they'll happen again. According to the Australian Climate Council, Sydney, Perth and Melbourne are all going to get a lot dryer in the future, and this will impact their urban water supply. If they're hit by another prolonged drought, then they could easily end up like Cape Town. And if that happens, we're going to be getting Australian climate refugees.

Wednesday, January 24, 2018

Last year, Open Government Minister Clare Curran was publicily shamed in the House over her apparent refusal of an OIA request. The Opposition had requested a list of all reports, briefings, memos or aides memoire received since she was sworn in as a Minister. Most of us would regard that as pretty clear. Instead, as part of the government's "fuck you" to opposition questions, she tried to pretend that the requester did not specify the information it was seeking with "due particularity" and effectively refused it. I was curious about how such a blatantly unlawful decision was made, so I used the OIA to request all correspondence about the original request.

Curran's response can be viewed on DocumentCloud here. While most details - including some apparent discussion - have been redacted for privacy (fine for names of junior staff; not fine for what they are saying unless its irrelevant to the topic), it is clear how this decision was made: because the Prime Minister's office told her to refuse the request.

The smoking gun is here. A Senior Ministerial Advisor in the Prime Minister's office emailed to say that similar requests had been received by all Ministers and to advise that they should be asked to refine their request. Curran's office obeyed. That same Senior Ministerial Adviser in the PM's office subsequently emailed to pass on the clarification that had been received, pretended that it also did not meet the "due particularity" test, and recommended that the request be refused. The good news is that this advice was not accepted: Curran instructed her staff to continue the request, and the requester received a proper response in late December.

Interference by Ministerial Advisers in the OIA process was one of the issues raised in Beverley Wakem's OIA review, though largely in the context of agency decisions. Here, we have a Ministerial Adviser interfering in the OIA decisions of other Ministers, and giving advice that seems blatantly unlawful. And that's simply not acceptable. The good news is that Ministerial Advisers are now subject to the SSC's Standards of Integrity and Conduct, which include a requirement to act "lawfully and ethically". This adviser hasn't. Their identity can easily be determined from the information in the OIA response. The question is, will SSC actually do anything about it, or is their Code just a joke?

The trade deal formerly known as the TPPA will be signed by its remaining parties in March. Apparently, there have been some more changes - Canada has kept negotiating, as opposed to MFAT, who was willing to sign whatever was put in front of them, no matter how bad - and the truly obnoxious features of the deal (ISDS and US copyright bullshit) were removed or "suspended" in the previous round of negotiations. So now, instead of a deal which was actively bad for New Zealand, we have one which merely seems a bit meh. Oh, free trade weenies are excited, but for the rest of us, it means squat, more a bullet dodged than anything else. And if that's the best we get from free trade, you really have to wonder why we bother with it at all, given the democratic cost of making these deals.

If we learn anything from this experience, it should be that we need more democracy in our foreign policy. This sort of international agreement needs a solid democratic mandate - and that means transparency. The current process, in which deals are made in secret, and our governments lie to us about what's in them, is simply not acceptable in a democracy. It has to change.

Back in 2016, the government adopted its second national action plan under the Open Government Partnership, committing to seven specific actions to make our government more open. The OGP requires countries to report regularly on progress, and in addition has an Independent Reporting Mechanism (IRM) to counteract their natural tendency to spin and bullshit as a substitute for action. The IRM has just released their latest draft report on New Zealand. So, how'd we do?

The good news is: pretty well. The government has actually been doing what it said it would do (which is more than it did last time), and been making clear progress towards meeting its commitments. Looking at some of the specific commitments, they're expecting a lot more information about where our money is going in this year's budget, plans to get all secondary legislation online and in one place (so we can know what the law is) are progressing well, and we now have some basic OIA statistics and a lot more departments are publicising their responses. Work on open data seems to be going less well, due to being moved to a new agency.

At the same time, the IRM notes that we can do more, and has a host of recommendations on how we could be more ambitious in our commitments and how we could take co-creation seriously (these being two real weaknesses: the previous government regarded OGP as a box-ticking exercise, and SSC was unwilling to engage in real consultation, let alone the co-creation required by the OGP). They also criticise the action plan for completely ignoring their past recommendations. The new government might mean we make some progress in those areas.

Reform official information laws and refocus the Open Data and Information Programme to publish social, environmental, and budget expenditure data

Develop standards for public consultation on policy initiatives

Include anti-corruption commitments in the next action plan, covering whistleblower protection and a public register of company beneficial ownership

Introduce citizenship education to increase democratic participation

We're supposed to be developing a new action plan this year, covering June 2018 - June 2020, so I guess we'll see whether the new government and new Minister will rise to this challenge. You can comment on the draft report here.

Wednesday, January 17, 2018

Over the past few years, the Official Information Act has been a vital tool in exposing our appalling fisheries management regime and the way it turns a blind eye to serious criminal behaviour by the industry. Those revelations have driven the push for a better monitoring regime, including video monitoring of fishing boats to detect and deter false reporting, dumping and high grading. But the fishing industry - which according to MPI would go out of business if the law was enforced - is deeply unhappy with its pervasive criminality being exposed. Their solution? Secrecy:

The commercial fishing industry wants to stop the public getting access to videos and images of fish being discarded and seabirds being caught by fishing boats because they say it could be bad for New Zealand's reputation.

The industry has asked the Government to change the law so that the Official Information Act could not be used by journalists, competitors and other groups to access such information.

[...]

"We suggest that the Fisheries Act be amended to clarify the purpose for which the IEMRS information (and other information on commercial fishing activities) will be obtained by MPI, and to expressly provide for the OIA to not apply to this information," the letter reads.

The document raises concerns about video revealing secret fishing spots, and that "potentially embarrassing" footage of paua divers getting undressed and changed into their wetsuits would be held by MPI.

Of course, privacy and commercial interests are already protected by the OIA. But that's not what really concerns them - what the fishing industry is worried about is pictures and footage of protected species caught in their nets and lines, or of criminal behaviour by fishers, which would damage their reputation. But to echo Kevin Hague, if fishers don't want the public to see pictures of dead dolphins in their nets, maybe they should not kill any? If an industry relies on secrecy to maintain social licence, then it deserves to die.

The OIA has been called a "quasi constitutional" statute. Its principle of transparency of government information is fundamental to our democracy. And we shouldn't be exempting information from it without a seriously good reason. The law and the Ombudsman are clear: the potential for political embarrassment is never a good reason to withhold information. That applies to politicians and public servants, and it should apply to the criminal fishing industry too.

Tuesday, January 16, 2018

The Asia New Zealand Foundation is a charitable trust established by the government. All members of the trust are appointed by the Minister of Foreign Affairs, and several key public servants are deemed ex officiio members. The trust exists to fulfil a government objective - strengthening relationships with Asia - and is accountable to Parliament for that mission under the Public Finance Act. Over 90% of its revenue comes from the government (and most of the rest is interest from past government endowments). And yet, it is apparently not subject to the Official Information Act. They're not explicitly scheduled, and as far as I can tell, do not fall into any of the categories in the various schedules. Weirdly, many of the organisations in schedule 4A of the Public Finance Actare subject to the OIA, though not according to any system that I can determine.

That said, you may be able to obtain information from the Secretary of MFAT, the CEO of NZTE, or the Secretary of Education by the roundabout way of s2(4A) OIA: because they're on the trust solely in connection with their official position, any information they hold about the Foundation from that source is thereby Official Information. And conveniently, the trust deed requires that they get sent board papers ahead of any meeting...

But obviously, you shouldn't have to do that. This is clearly a government body. It is spending our money. And it should be accountable to us, through the OIA.

The government could fix this - and all of the other weird little exceptions and exemptions - in an instant by adding it to the OIA schedule by Order in Council. The question is, will it? And if not, does anybody want to take a member's bill to fix it?

Last year, the Spanish government in Madrid dissolved Catalanoia's regional government and forced regional elections in the hope of overthrowing a seperatist majority in the regional Parliament. They lost. Catalans marched to the ballot boxes in record numbers, and re-elected the people Spain wanted to get rid of. They now seem set to re-elect the Carles Puigdemont - the man Madrid overthrew - as President. So naturally, Spain is having another tantrum:

Spain’s Prime Minister Mariano Rajoy has warned Madrid will continue to run Catalonia’s government if separatist leader Carles Puigdemont tries to govern from Belgium, where he is living in self-imposed exile.

Separatist parties last week agreed to reinstall Mr Puigdemont as Catalonia’s president of government, following fresh elections in which they kept their majority in the Catalan Parliament.

[...]

In a speech at his centre-right People’s Party headquarters on Monday, Mr Rajoy said: “It’s absurd that someone aspires to be president of the Catalan regional government as a fugitive in Brussels – it’s a case of common sense.”

Spanish government spokesman Inigo Mendez de Vigo added: “Parliamentary rules are very clear. They do not contemplate the possibility of a [parliamentary] presence that is not in person.

Maybe Spain's parliamentary rules do. But Catalonia's parliamentary rules are a matter for Catalans. And I'd look to Catalonia for their interpretation, not Madrid. As for Madrid's threat, the will of the Catalan people is clear: they want the seperatists as government and Puigdemont as President. Spain needs to respect that. But that's the whole problem, isn't it?

Thursday, January 11, 2018

The Mosquito is a sound system that emits a deafening whine at a frequency older people cannot hear. It is explicitly used to deny access to public space to young people and to "deter" them from "congregating". Over the past few years, such devices have been installed by a number of New Zealand local authorities in parks and other public spaces, often at the behest of the police.

It also pretty obviously violates the Human Rights Act.

The Human Rights Act includes age (meaning any age above 16 years) as a prohibited ground of discrimination. Refusing access by the public to places, vehicles, or facilities on the basis of a prohibited ground of discrimination is illegal. But this is the explicit purpose of Mosquito devices, and the sound they emit is expected to be heard by people up to the age of 25. So, the explicit purpose of such devices is to deny people access to spaces (by making it damn unpleasant to be there), on the basis of a prohibited ground of discrimination.

Using such a device might not be unlawful where the space is already closed to everyone, regardless of age. "Might" because local authorities (and the police who are advising them) have wider obligations not to discriminate under the Bill of Rights Act, and these may rule out specifically age-based measures unless they can meet the stringent test of a justified limitation. And because the effects of these devices may intrude into areas which are not closed, which immediately violates freedom from discrimination, as well as the freedoms of movement, assembly and association. What is clear is that deploying them in or in a way which affects public streets, open parks, "pedestrian links", or any public space is discriminatory and illegal.

The new laws also introduce an open-access scheme. Open access is a "push model" for providing government information to the public without the need for a formal request. Information that will now be proactively and regularly disclosed includes policy documents, details about agency activities and budgeting, technical and scientific reports prepared for government, information about ministerial and staff travel and hospitality expenses, ministers' diaries including all ministerial appointments and meetings, minutes of meetings and reports of government boards and panels, summaries of cabinet decisions, and the triple-bottom-line assessment for cabinet decisions.

[...]

The open-access scheme will greatly benefit the community by allowing people to discover and understand information about government decision-making that they didn't even know existed or realised they were interested in. The community is crying out for more transparency from government and this is a really strong way to improve this, without putting people through the formalities of an FOI request.

Much of this information is routinely proactively published in New Zealand - but not all of it is. And the stuff we do get is purely by grace and favour, and can be redacted however an agency pleases (well... you could use the Ombudsman Act to challenge on reasonableness, and the Ombudsman would probably say that what's reasonable is what's in the OIA, but its difficult to mount a substantive challenge to redactions). We'd benefit both from statutory backing for routine disclosure, and by requiring automatic disclosure of material such as Ministerial diaries, cabinet papers and minutes, and minutes from government boards. At the least, it would help prevent shit like this, where requests for routine, easily found information are obstructed out of sheer bloody-mindedness.

Thousands of government papers detailing some of the most controversial episodes in 20th-century British history have vanished after civil servants removed them from the country’s National Archives and then reported them as lost.

Documents concerning the Falklands war, Northern Ireland’s Troubles and the infamous Zinoviev letter – in which MI6 officers plotted to bring about the downfall of the first Labour government - are all said to have been misplaced.

[...]

Almost 1,000 files, each thought to contain dozens of papers, are affected. In most instances the entire file is said to have been mislaid after being removed from public view at the archives and taken back to Whitehall.

An entire file on the Zinoviev letter scandal is said to have been lost after Home Office civil servants took it away. The Home Office declined to say why it was taken or when or how it was lost. Nor would its say whether any copies had been made.

In other instances, papers from within files have been carefully selected and taken away.

How convenient. Its amazing how its the documents on the UK government's controversial actions, which might not show it in the best light (or which might lead to justice for its colonial victims), which are being "misplaced" in this way. If the British establishment was trying to give the impression that it had stolen these documents and then destroyed them in a crude coverup, they couldn't do a better job.

And they can do it because the UK Public Records Act does not include any offence provisions. In New Zealand, it is a criminal offence to destroy public records. In the UK, of course, they have an outdated law designed to protect the establishment rather than hold it to account.

But it does make me wonder if anything similar happens here. New Zealand has a statutory process for temporary return of archive material and you'd expect it to be checked when it comes back to the archives. So, I guess its time for an OIA about how often this happens, and whether anything goes "missing" in the process. Hopefully its rare enough that I can get a list...